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TYPES OF DAMAGES - Emotional and mental distress - Loss of opportunity - Exemplary or punitive damages

Friday, November 06, 2020 @ 6:04 AM  


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Appeal by the defendant from the damages awarded to the respondent for defamation and the costs award. The summary trial on quantum proceeded entirely on affidavits. The respondent was the principal of the school attended by four of the appellant’s children. A few incidents in 2004 were escalated out of proportion and ended with the appellant launching a sustained and unjustified attack on the respondent in her professional capacity. The respondent was awarded general damages of $150,000, aggravated damages of $100,000, punitive damages of $10,000 and costs of $64,199 based on Schedule C of the Rules but doubled after an offer made by the respondent. The Quantum reasons concluded that at the time of the defamation the respondent had a solid public professional stature. Since the respondent was a professional educator, the allegations involving impropriety against children were particularly harmful to her reputation. The appellant argued that the damages awarded were excessive. The respondent’s employment with the School Board had continued, notwithstanding the defamatory statements made by the appellant. However, while the respondent was successful in obtaining a position at the Edmonton Public Schools head office, there was uncontradicted and unchallenged evidence that her prospects of further promotion had been impeded by the appellant’s conduct.

HELD: Appeal allowed in part. The awards of punitive and aggravated damages were set aside. The Quantum trial judge was entitled to accept the evidence that the respondent’s prospects of further promotion had been impeded by the appellant’s conduct. Although the Quantum reasons might have overstated some of the facts and the quantum was significant, it was within the range of damages that could potentially be awarded on this record. The Quantum reasons did not consider any irrelevant factors, or overlook any relevant factors, and the award was not wholly unreasonable. The general damage award was confirmed. The main issue with the award of aggravated damages was that there was no finding that the respondent’s injury was increased by the identified conduct, over and above the injury that was recognized in the award of general damages. The mere fact that there was a failure to apologize did not justify an award of aggravated damages. The mere identification of aggravating factors did not support an award of aggravated damages, unless these aggravating factors were over and above the core findings with respect to the defamation and resulted in damage not recognized in the general damage award. The failure of the Quantum reasons to consider and find that damages were increased by the identified aggravating conduct was an error of principle and the award of aggravated damages could not be sustained. The Quantum reasons did not explain why the general damages award of $150,000, the aggravated damages award of $100,000 and the costs award of $64,199 would be insufficient to deter a person of limited means like the appellant. This was an error of principle requiring that the award for punitive damages was set aside. There was no basis, however, to disturb the costs award.

Elkow v. Sana, [2020] A.J. No. 1029, Alberta Court of Appeal, F.F. Slatter, R. Khullar and E.A. Hughes JJ.A., October 1, 2020. Digest No. TLD-November22020009